Citation Nr: 1324973 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-47 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder claimed as depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from September 1973 to May 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran and her son testified before the undersigned Veterans Law Judge at a hearing held via videoconference. A transcript of that hearing is of record. In an October 2012 decision, the Board denied service connection for compensation under the provisions of 38 U.S.C.A. § 1151 for right ankle disability and a dental condition, and remanded the depression claim for further development and consideration. FINDINGS OF FACT 1. The Veteran's claim for service connection for a psychiatric disorder claimed as depression was denied in an April 1996 Board decision, and no appeal was initiated from that decision. 2. The evidence added to the claims folder since April 1996 does not relate to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder claimed as depression or otherwise raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received and the claim of entitlement to service connection for a psychiatric disorder claimed as depression is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the notice letter provided to the Veteran in October 2008 included the requirements for reopening a previously denied claim, the requirements for establishing service connection and to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date, and information concerning the basis for the prior denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file. The Board remanded this claim in October 2012 to obtain additional treatment records which are contained in the Veteran's electronic Virtual VA folder. Her complete Social Security Administration (SSA) disability records were also to be obtained. The Appeals Management Center (AMC) contacted the SSA, who indicated no records were available. A formal finding of the unavailability of these records was made in April 2013, and the AMC notified the Veteran of this finding and requested that she submit any records in her possession regarding her application for SSA disability benefits. She has not provided any such records, only questioned why her records would have been destroyed and noted she was given total disability by SSA in 1991. In her April 2013 correspondence, the Veteran essentially referenced two types of treatment records, a September 1989 VA neuropsychiatric evaluation and VA psychiatric treatment records from a specific VA psychiatrist, and questioned whether they were contained in the record and considered by the VA. The neuropsychiatric evaluation is contained in the Veteran's claims file, and the VA psychiatric treatment records are contained in her electronic Virtual VA folder. They have been considered by the VA. The Board therefore is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran also requests service connection for depression as secondary to her right ankle disability which she believes was caused by negligent VA treatment. However, her claim for compensation under the provisions of 38 U.S.C.A. § 1151 for right ankle disability was denied in the Board's October 2012 decision. The law is dispositive of the issue. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, there is no notice which could assist the Veteran to substantiate a claim for service connection for depression as secondary to a right ankle disability. Further discussion of the VCAA with respect to this theory of entitlement is not required. Consequently, VA has provided all assistance required by the VCAA concerning this claim. 38 U.S.C.A. § 5103A. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In June 1993, the Veteran requested service connection for depression. The RO denied the claim in November 1993. She filed a timely appeal to the Board, and the Board denied the claim for a psychiatric disorder claimed as depression in April 1996. The Board found that an etiologic link was not demonstrated between any current psychiatric disorder and the isolated episode of depression observed in service. The Board considered the Veteran's service treatment records (STRs) which revealed in April 1974 the Veteran presented with complaints of anorexia, malaise, tiredness, and constipation. The impression was either possible depression or "mono." Testing for "mono" was negative; the feeling was that a depression was being manifested. She was seen in May in follow-up; however no notation of a definitive diagnosis of her problem was made. Her exit examination was silent for any complaint or clinical finding of psychiatric problem. Post-service treatment records note she was a hospitalized in May 1983 for severe headache, excessive weight gain, and alleged anxiety depression state, secondary to an unspecified industrial injury. The discharge diagnosis was empty-sella syndrome, vascular cephalgia, tension cephalgia, cyclothymic personality trait, anxiety depression syndrome, and low back pain. The report noted episodes of acting out and some episodes of refusal of testing, along with disorientation at some times. The Veteran subsequently became headache free, seemingly with her anxiety markedly decreased and her attitude somewhat improved. Treatment records also note she fell off of the hood of a car in April 1989. She was treated for a large right parietal subdural hematoma. A twist drill craniostomy and drainage of the subdural hematoma was performed. She was subsequently diagnosed with seizures or questionable seizures, post-concussion headaches, and depression. A decision of the SSA granted the Veteran disability insurance benefits, effective April 1989. Various treatment records, and an April 1992 VA social work survey, noted that the Veteran's depression dated back to the 1989 accident. The April 1996 Board decision was not appealed and that decision is final. See 38 U.S.C.A. § 7104. She attempted to reopen the claim in September 2007. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only needs to be probative in regard to each element that was a specified basis for the last disallowance). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). New medical evidence continues to show treatment for depression, and some treatment records note that the Veteran is depressed about her right ankle disability. She believed that it creates a great deal of functional limitation and cosmetic deformity. She also believed the disability was caused by negligent VA treatment. The evidence, while not a part of the record prior to the April 1996 denial, is redundant in that it continues to show current diagnosis and treatment. Additionally, the evidence is not material, because it does not link a current psychiatric disorder to service. As such, this evidence does not relate to the basis for the previous denial, nor does it otherwise present a reasonable possibility of substantiating the Veteran's claim. The Veteran also contends that her depression is due to her right ankle disability which she believes was caused by negligent VA treatment. A new etiological theory does not constitute a new claim, and a Veteran must still present new and material evidence to reopen the claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). As noted above, she is not in receipt of compensation under the provisions of 38 U.S.C.A. § 1151 for right ankle disability. Therefore, as matter of law, she cannot be granted secondary service connection for her depression. See Sabonis, supra. In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for a psychiatric disorder claimed as depression does not relate to an unestablished fact necessary to substantiate the claim, is cumulative or redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the Veteran's claim. Therefore, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a), and the claim for service connection for depression is not reopened. As new and material evidence to reopen the Veteran's finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the appeal to reopen the Veteran's claim for entitlement to service connection for a psychiatric disorder claimed as depression is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs